Khalid Akil White dba BLKMPWR

Trademark Trial and Appeal Board

Sep 29, 2017

No. 86644303 (T.T.A.B. Sep. 29, 2017)

This Opinion is not a
Precedent of the TTAB

Oral Hearing: July 27, 2017 Mailed: September 29, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Khalid Akil White dba BLKMPWR
_____

Serial No. 86644303
_____

Herbert T. Patty of The Law Office of Herbert T. Patty,
for Khalid Akil White.
In Pyo Lee, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Mermelstein, Kuczma and Goodman,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Khalid Akil White dba BLKMPWR (“Applicant”) seeks registration on the
Principal Register of the mark:

Serial No. 86644303

- 2 -
for: T-shirts in International Class 25.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood
of confusion with the mark:

set forth in Registration No. 2547979, owned by Everett Staten, for clothing, namely,
hats and shirts.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the request for reconsideration was denied, the appeal was
resumed. Applicant and the Examining Attorney filed briefs, including Applicant’s
reply brief, and an oral hearing was held. We affirm the refusal to register.

1 Application Serial No. 86644303 was filed on May 28, 2015, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). The application includes the following description: “The
mark consists of a black background with a trace of the continent of Africa thereon in the
color gold. Within the perimeter of Africa is a black image of the United States. The portion
of the image of Africa above the image of the United States, and the open areas therein,
including the Great Lakes, is in red which extends to the gold perimeter portion of the African
continent and the top portion of the image of the United States. The portion of the image of
Africa below the image of the United States is in green such that the green portion of the
mark extends to the gold perimeter border of the African continent.” The colors black, gold,
red, green are claimed as features of the mark.
2 Registration No. 2547979 issued March 12, 2002; renewed.
Serial No. 86644303

- 3 -
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address the Examining
Attorney’s objection to Applicant’s attempt to introduce new evidence at page 10 of
Applicant’s appeal brief.3 The Examining Attorney requests that the new evidence,
or any references to it, be excluded from the record.4
In response, Applicant admits that he included “basic information concerning
indisputable facts; namely, that Africa is often referred to as ‘the dark continent’ with
a Wikipedia link … , and that in the United States of America white Americans
comprise the majority ethnic group at approximately 62% of the population again for
which Wikipedia statistics were included as a source to support this fact.”5 Applicant
explains that “known information was submitted [on appeal] to corroborate
arguments that the Applicant submitted on the record during prosecution.”6
No evidence was introduced by Applicant to support the foregoing statements in
its brief as copies of the Wikipedia and other articles cited by Applicant are not in the
record. Moreover, even if copies were submitted, they would have been untimely. The
evidentiary record should be complete prior to the filing of the notice of appeal. 37
CFR 2.142(d); see In re Fiat Group Marketing & Corporate Comm’ns S.p.A., 109
USPQ2d 1593, 1596 (TTAB 2014) (examining attorney’s objection to applicant’s
submission of registrations with appeal brief sustained); In re Pedersen, 109 USPQ2d

3 Brief for Appellant p. 10 (6 TTABVUE 11).
4 Examining Attorney’s Appeal Brief (8 TTABVUE 4-5).
5 Applicant’s Reply Brief p. 2 (9 TTABVUE 3).
6 Id.
Serial No. 86644303

- 4 -
1185, 1188 (TTAB 2013) (copies of documents pertaining to district court litigation
submitted with applicant’s appeal brief not considered); In re Fitch IBCA, Inc., 64
USPQ2d 1058, 1059 n.2 (TTAB 2002) (evidence submitted with applicant’s brief not
considered). To the extent Applicant requests that we take judicial notice of the
indicated facts, we decline to do so. First, the matter in question is beyond the scope
of our usual exercise of judicial notice, and second Applicant has not submitted in the
record copies of the referenced materials. The record of the proceeding must be
complete; the Board will not follow hyperlinks or look for evidence which is not
actually submitted. In re HSB Solomon Assocs., 102 USPQ2d 1269, 1274 (TTAB 2012)
(“reference to a website’s internet address is not sufficient to make the content of that
website or any pages from that website of record”). See also Safer Inc. v. OMS Invs.
Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (because of the transitory nature of internet
postings, evidence referenced only by links may later be modified or deleted).
Therefore, the Examining Attorney’s objection is well taken and the information cited
on page 10 of Applicant’s opening brief noted above has not been considered.
II. Likelihood of Confusion
Our determination of likelihood of confusion under § 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to the factors bearing on the
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
Serial No. 86644303

- 5 -
between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by §2(d)
goes to the cumulative effect of differences in the essential characteristics of the goods
and differences in the marks”).
Inasmuch as Registrant’s mark is registered for shirts, which is broad enough to
encompass Applicant’s T-shirts7, the goods are identical in part. Given the identity of
the goods, at least in part, and the lack of restrictions on trade channels and classes
of consumers in the recitations of the goods, it is presumed that these goods travel
through the same channels of trade, to the same classes of customers. In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (Board entitled to rely
on this legal presumption in determining likelihood of confusion even though there
was no evidence regarding channels of trade and classes of consumers); Citigroup Inc.
v. Capital City Bank Group Inc., 98 USPQ2d 1253, 1261 (Fed. Cir. 2011) (citing
Hewlett Packard Co. v. Packard Press, Inc., 281 F.2d 1261, 62 USPQ2d 1001, 1005
(Fed. Cir. 2002)); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723
(CCPA 1968) (where there are legally identical goods, the channels of trade and
classes of purchasers are considered to be the same).

7 See definitions of “T-shirt” from http://www.collinsdictionary.com/dictionary/english/t-
shirt, attached to Examining Attorney’s Appeal Brief (8 TTABVUE 16), which is defined as
“a cotton shirt with no collar or buttons…” and “1. a collarless, cotton undershirt with short
sleeves; 2. a similar pullover knit sport shirt.” The Board routinely takes judicial notice of
dictionary definitions when supplied with a copy of the definition, Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have
regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).

Serial No. 86644303

- 6 -
We now turn to the remaining relevant du Pont factor requiring examination of
“the similarity or dissimilarity of the marks in their entireties as to appearance,
sound, connotation and commercial impression.” du Pont, 177 USPQ 567. Where the
marks at issue are both design marks, as they are here, the similarity of the marks
must be decided primarily on the basis of their visual similarity. See, e.g.,
Volkswagenwerk Aktiengesellschaft v. Rose ‘Vear Enters., 592 F.2d 1180, 201 USPQ
7, 9 (CCPA 1979) (quoting In re ATV Network Ltd., 552 F.2d 925, 193 USPQ 331, 332
(CCPA 1977)); Fort James Operating Co. v. Royal Paper Converting Inc., 83 USPQ2d
1624, 1628 (TTAB 2007); In re Vienna Sausage Mfg. Co., 16 USPQ2d 2044, 2047
(TTAB 1990); Trademark Manual of Examining Procedure (“TMEP”) § 1207.01(c)
(April 2017).
Although there are specific differences in appearance between Applicant’s and
Registrant’s marks, it is well established that the test to be applied in determining
likelihood of confusion is not whether marks are distinguishable on the basis of a
side-by-side comparison but rather whether the marks in their entireties are
sufficiently similar in terms of their overall commercial impression so that confusion
as to the source of the goods offered under the respective marks is likely to result.
This requires us to keep in mind the fallibility of memory of the average purchaser
over a period of time resulting in their normally retaining a general overall
impression of the mark or of the theme generated by the mark rather than a specific
recollection of a trademark. See Coach Services Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Grandpa Pidgeon’s of Mo., Inc.
Serial No. 86644303

- 7 -
v. Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973); Johann Maria Farina
Gegenuber Dem Julichs-Platz v. Chesebrough-Pond, Inc., 470 F.2d 1385, 176 USPQ
199, 200 (CCPA 1972); In re Solar Energy Corp., 217 USPQ 743, 745 (TTAB 1983);
Carl Karcher Enters., Inc. v. MTS Franchise Corp., 213 USPQ 254, 257-58 (TTAB
1980); In re Barnhardt Farms, Inc., 196 USPQ 309, 311 (TTAB 1977) (purchasers
normally retain only a general or overall rather than a specific recollection of the
various elements or characteristics of design marks). Thus, when comparing
Applicant’s and Registrant’s design marks, the focus is on the overall commercial
impression conveyed by such marks, not on their specific differences.
Turning to the marks, the Examining Attorney notes they are design-only marks
that feature undetailed maps of the continent of Africa and the United States, stacked
on top of the other, contending the only difference is that “Applicant’s mark features
the U.S. map inside the continent of Africa, whereas Registrant’s mark features the
continent of Africa on top of the U.S. map.” The foregoing similarities, according to
the Examining Attorney, support finding that “Applicant’s mark creates the same
overall commercial impression as Registrant’s mark, specifically, that of two
particular geographic regions.”8
Applicant disagrees that the marks have the same overall commercial impression,
noting that the dominant portion of each mark is different. According to Applicant,
the “African map element appears to be the dominant portion of the cited mark
whereas the United States’ map element appears to be the dominant portion of

8 Examining Attorney’s Appeal Brief (8 TTABVUE 6).
Serial No. 86644303

- 8 -
[Applicant’s] applied-for mark.”9 Applicant further notes that the cited registration
features an exact map of Africa stacked on top of a map of the United States,
suggesting that the African continent is dominant to the United States.10 Applicant
observes that his mark features a stylized drawing of Africa that has been artistically
altered to encompass the precise shape of the Unites States within its borders, which
is an integral part of the meaning of his mark maintaining this difference is more
than a slight nuance, profoundly affecting the overall shapes and impressions of the
two marks.11
Applicant argues that the use of scale, positioning, and placement of the United
States’ map element in his mark creates a commercial impression that symbolizes
cultural and ethnic unity whereas the cited mark appears to create the impression of
Africa’s (or African people’s) dominance of the United States (or its citizens). Thus,
Applicant argues, Applicant’s mark is not merely a transposition of two elements
overlapping one another and creates a vastly different commercial impression than
that of the cited mark.12 The Examining Attorney acknowledges that the word
“transpose” was used once in the Final Office Action to mean “put into a different
order,” to indicate the different order as to how Applicant’s mark and the cited mark

9 Brief for Appellant p. 8 (6 TTABVUE 9); Applicant’s Reply Brief p. 5 (9 TTABVUE 6).
10 Brief for Appellant p. 10 (6 TTABVUE 11).
11 February 6, 2016 Response to Office Action at 5.
12 Brief for Appellant p. 12 (6 TTABVUE 13). This appears to be a change in Applicant’s
position from that in its Request for Reconsideration at 6 where Applicant argued “[t]he
marks in question involve the transposition of the design elements in each mark” arguing
that if the transposed mark creates a distinctly different commercial impression, confusion
is not likely.
Serial No. 86644303

- 9 -
were presented, not to suggest that the applied-for mark is a transposition of the
mark in the cited registration. According to the Examining Attorney, the only
difference between the marks is that in Applicant’s mark, the map of the United
States appears unaltered and on top of the African continent, while in the cited
registration, the map of the African continent appears unaltered on top of the map of
the United States.13
While recognizing that the marks share common elements, Applicant challenges
the Examining Attorney’s failure to “provide any analysis on why this [i.e., the use of
the same elements] would necessitate that the marks create the same commercial
impression.”14 Contending that his mark conveys a strong historical context which
cannot be divorced from the overall likelihood of confusion analysis with the cited
mark, Applicant argues that the “use of historical and cultural symbolism [in his
mark] creates a unique commercial impression of Pan-African unity and signifies the
repatriation of Americans of African ancestry to Africa,” and that the “inclusion of
the United States, a world superpower and historically-imperialist nation, confined
within the interior area of a continent (which was subjected to colonialization by
imperialist nations) is rather peculiar and would most likely create a distinct and
memorable commercial impression to reasonably prudent purchasers.”15 Applicant
also contends that the “applied-for-mark’s inclusion of the United States’ map

13 Examining Attorney’s Appeal Brief (8 TTABVUE 8-9).
14 Brief for Appellant p. 7 (6 TTABVUE 8).
15 Brief for Appellant p. 9 (6 TTABVUE 10).
Serial No. 86644303

- 10 -
element within the central area of the African continent signifies the African-
American race is a critical set within the African Diaspora and therefore vital to the
repatriation of all persons of African descent to repatriate to Africa in mind, body,
and soul. As such, those of African descent which consider themselves members of
the African Diaspora would be drawn to Appellant’s applied-for-mark as it signifies
repatriation or return to their ‘motherland.’”16
According to Applicant, the color scheme of Applicant’s mark is consistent with
the African flag and symbolizes unity of African American people as members of the
African Diaspora.17 Applicant concludes that most Americans are familiar with this
history due to the teaching of the Diaspora as part of social studies education in public
schools,18 and would therefore acknowledge the significance and distinctiveness of

16 Brief for Appellant p. 9 (6 TTABVUE 10).
17 Applicant explains that each design element in his mark has been carefully chosen to help
evoke this message of unity and repatriation. The colors of the mark have been intentionally
selected and arranged to match the horizontal, red, black and green stripes of the Pan-African
flag. Request for Reconsideration at 3.
Applicant further argues without offering a copy of the supporting evidence:
The red, black and green stripes of the Pan-African flag have been a symbol of Pan-
African unity and African-American repatriation since the Universal Negro
Improvement Association’s (UNIA) adoption of the flag almost 100 years ago.
(http://www.the unia-acl.com/index.php/history-red-black-green). According to the
UNIA, the red stripe represents the blood that unites all people of African descent;
the black stripe represents all people of African descent, and the green stripe
represents the abundant, natural wealth of Africa.
Request for Reconsideration at 3.
18 Request for Reconsideration at 3. Applicant did not introduce a copy of the article about
the African Diaspora at the website address mentioned in Applicant’s Request for
Reconsideration at 3. Therefore, the article at http://www.socialstudies .org/publications
/socialeducation/january-february2012/teaching_and_learning_with_teaching historyorg is
not in the record. Similarly, the record does not contain a copy of the material on Wikipedia
at https://en.wikipedia.org/wiki/African_diaspora mentioned in the Request for
Reconsideration at 5.
Serial No. 86644303

- 11 -
Applicant’s mark.19 “This significance cannot possibly be lost on the general public
familiar with American history; namely African-American history.”20
The Examining Attorney maintains that the general “public would not and,
frankly, could not draw such a conclusion or meaning from the applied-for mark
where Applicant describes an abstract concept without context and the applied-for
mark does not contain any wording that could even imply Pan-African unity or
repatriation, particularly as the mark is used on clothing goods.” As pointed out by
the Examining Attorney, there is no evidence in the record to support Applicant’s
presumption that consumers would be able to extrapolate such abstract concepts from
the proposed mark.21 We add that there is nothing in the application before us which
would limit Applicant’s customers to those familiar with African-American history.
Considering each design mark separately, the map of the African continent is the
dominant part of both marks, comprising the dark image superimposed on the outline
of the United States in Registrant’s mark and forming the large perimeter (inside the
black background rectangle) of Applicant’s mark. However, the map of the United
States is also visible and readily recognizable in each mark, diminishing the focus
normally accorded to the dominant portion of a mark. Thus, the viewer’s attention to
each mark is drawn to the maps of Africa and the United States.

19 Request for Reconsideration at 4.
20 Applicant’s Reply Brief p. 7 (9 TTABVUE 8).
21 Examining Attorney’s Appeal Brief (8 TTABVUE 10-11).
Serial No. 86644303

- 12 -
Applicant’s interpretations of his mark indicate merely what Applicant intended
his mark to represent. Similarly, Applicant’s interpretation of Registrant’s mark is
only his interpretation. This is not sufficient to show a lack of likelihood of confusion,
source or sponsorship. As we have previously found in a likelihood of confusion
analysis, an applicant (or registrant’s) intended interpretation of the mark is not
necessarily the same as the consumer’s perception of it. In re Yale Sportswear Corp.,
88 USPQ2d 1121, 1125 (TTAB 2008); Interpayment Svcs. Ltd. v. Docters & Thiede, 66
USPQ2d 1463, 1465 (TTAB 2003) (“… it does not matter what applicant’s intentions
were in creating its mark or what its characterization of its mark is”).
Applicant contends that his goods are being marketed to a particular
demographic, he operates under the business name BLKMPWR and his goods are
explicitly directed towards African-Americans, particularly those with a strong sense
of cultural identity who are able to acknowledge such symbolism. Applicant argues
“It should be noted that that a mark’s commercial impression should be measured by
consumers and persons familiar with the type of products… (Ilco Corp. v. Ideal Sec.
Hardware Corp., 527 F.2d 1221, [188 USPQ 485, 487] (CCPA 1976) and therefore the
relevant consumers are primarily African-Americans.”22 Therefore, Applicant
concludes, his mark “could, and does, imply the concept of repatriation as is implied
without the use of words through the inclusion of the United States centrally fitted
within the native land of African people.”23 We disagree. While commercial

22 Applicant’s Reply Brief pp. 4, 8 (9 TTABVUE 5, 9).
23 Applicant’s Reply Brief p. 8 (9 TTABVUE 9).
Serial No. 86644303

- 13 -
impression is gauged by the impact of the mark on the relevant purchasers, in this
case, that is the general public, since there is nothing in the application restricting
the goods to “primarily African-Americans.”
Applicant also argues that the cited registration fails to convey the concepts of
Pan-African unity and repatriation because its composition creates the impression
that Africa is superior to the United States due to the placement of the African
continent covering a vast majority of the depicted map of the United States. This
depiction of dominance is incompatible with the philosophy of Pan-African unity and
repatriation according to Applicant. Moreover, Applicant characterizes the
disparaging depiction of the United States in the cited mark as subordinate to the
African nations, arguing that is not found in Applicant’s mark which illustrates how
African-Americans are tied to their native land in mind, body, and soul.24
The Examining Attorney contends that even if the general public were able to
understand that Applicant’s mark conveys Pan-African unity and repatriation, the
cited registration creates the same commercial impression of unity and repatriation.25
Applicant further asserts that consumers have a high comprehension of design
mark distinctions in the apparel industry, citing In re Covalinski, 113 USPQ2d 1166,
[1168] (TTAB 2014), which Applicant asserts “held that in the field of apparel,
consumers are more influenced by the visual impressions made by marks (which in

24 Applicant’s Reply Brief pp. 8-9 (9 TTABVUE 9-10).
25 Examining Attorney’s Appeal Brief (8 TTABVUE 11).
Serial No. 86644303

- 14 -
the present case emphasize their different meanings) than in other cases.”26
Applicant cites Covalinski for the proposition that consumers in the realm of apparel
have a high comprehension for visual impressions.27 As such, Applicant argues
Covalinski supports the notion that consumers exercise great care when making
choices about what they will wear concluding that consumers are able to distinguish
the marks in the present case due to this heightened care in addition to the distinct
design configuration and meaning of Applicant’s mark.28
Covalinski involved the registrability of the word and design mark
(REDNECK RACEGIRL plus design, U.S. Serial No.
85685983) for “[a]thletic apparel, namely, shirts, pants, jackets, footwear, hats and
caps, athletic uniforms” in view of the cited registration for the mark RACEGIRL (in
standard characters, Registration No. 3351313) for “caps; jerseys; leather belts; short
sets; tops; shirts; shorts; jackets; blouses; caps with visors; crop tops; hat bands; hats;
knitted caps; sweat bands; sweat pants; tank tops; visors.” Thus, the marks in
Covalinski were the applicant’s word and design mark and the cited registrant’s word
mark. The Board in Covalinski noted that because consumers are likely to encounter
the mark in a retail setting the visual impression of the mark is likely to be more
important. 113 USPQ2d at 1168. Here, in contrast to Covalinski, we have two design-

26 Brief for Appellant p. 8 (6 TTABVUE 9).
27 Id.; Applicant’s Reply Brief p. 9 (9 TTABVUE 10).
28 Applicant’s Reply Brief p. 9 (9 TTABVUE 10).
Serial No. 86644303

- 15 -
only marks each consisting of maps of Africa and the United States. Thus, the marks
in Covalinski are fundamentally different from the marks involved in this case.
While Applicant’s mark claims the colors black, gold, red, and green, the
Examining Attorney contends that Applicant’s depiction of the maps in those colors
does not significantly distinguish Applicant’s proposed mark from the mark in the
cited registration which is depicted in a black-and-white special form drawing.
Because Registrant’s mark has no color claim, the Examining Attorney asserts that
it is presumed to contemplate the use of the mark in any color, without limitation,
citing TMEP § 807.14(e)(i).29 As such, the Examining Attorney concludes,
Registrant’s mark could be displayed featuring the exact same color scheme as the
Applicant’s mark (at least the African map element of the mark).30 This would not be
a material alteration of Registrant’s mark, according to the Examining Attorney,
because that mark is depicted in a black-and-white special form drawing in which no
color is claimed.
On the other hand, Applicant argues that expanding the cited mark (or the cited
mark’s Africa map element) to Applicant’s mark results in a material alteration of
the cited mark.31 Applicant contends that the Examining Attorney has “improperly
broadened [TMEP §807.14(e)] to provide the basis that the cited mark may be
amended in any fashion by use of any combination of colors,”32 contending that if the

29 Examining Attorney’s Appeal Brief (8 TTABVUE 10).
30 Examining Attorney’s Appeal Brief (8 TTABVUE 6).
31 Brief for Appellant p. 12 (6 TTABVUE 13); Applicant’s Reply Brief p. 6 (9 TTABVUE 7).
32 Brief for Appellant p. 12 (6 TTABVUE 13).
Serial No. 86644303

- 16 -
African map in the cited registration is “reconfigured with [Applicant’s] claimed
colors – red, black, and green, this would render a material alteration of the cited
mark.”33 Applicant maintains that the two design marks at issue lend themselves to
very particular types of coloring which distinguishes the marks as Applicant’s mark
adopts the colors of the Pan African flag to denote ethnic unity whereas the cited
mark employs the colors black and white to denote “white America” and “black
Africa.” According to Applicant, several elements, including the inclusion of segments
and borders within the African map element, would need to be altered in order for
the cited mark to create the same commercial impression. Thus, Applicant submits if
Registrant were to attempt to amend his mark in order to reach the visual impression
created by Applicant’s mark, he would not be able to do so as the numerous changes
would amount to a materially altered, essentially new, mark.34 Applicant concludes
that the TMEP would be improperly broadened if it allowed the cited mark to be
amended in any fashion by use of any combination of colors.35
We look to Section 807.14(e)(i) of the TMEP regarding the significance of black-
and-white drawings:
Black-and-White Drawings
…
If a mark is initially depicted in a black-and-white special
form drawing in which no color is claimed, the drawing is
presumed to contemplate the use of the mark in any color,
without limitation. See, e.g., In re Data Packaging Corp.,

33 Brief for Appellant p. 13 (6 TTABVUE 14).
34 Brief for Appellant p. 14 (6 TTABVUE 15).
35 Brief for Appellant p. 12 (6 TTABVUE 13); Applicant’s Reply Brief p. 3 (9 TTABVUE 4).
Serial No. 86644303

- 17 -
453 F.2d 1300, 1302, 172 USPQ 396, 397 (C.C.P.A.
1972). The amendment of the black-and-white drawing to
one claiming a particular color as a feature of the mark is,
therefore, a restriction or limitation of the applicant’s
rights.
Applicant interprets the foregoing to restrict the use of color to a single color. That
is too narrow of a reading. Since the cited mark is depicted in a black-and-white
special form drawing in which no color is claimed, the drawing is presumed to
contemplate the use of the mark in any colors without limitation.
There are numerous color schemes that could be applied to Registrant’s mark
including schemes using the red, black and green colors similar to those found in
Applicant’s mark, resulting in both Registrant’s mark and Applicant’s mark having
the red, black and green colors used in the African flag for the map portions of the
marks. That Applicant’s mark has a black background is not likely to be recalled by
purchasers and is therefore not a sufficient difference to distinguish the marks.
Because Registrant’s mark makes no color claim, the drawing is presumed to
contemplate the use of the mark in any colors, including those used in Applicant’s
mark. See In re Data Packaging Corp., 453 F.2d 1300, 172 USPQ 396, 397 (CCPA
1972) (court allowed registration of a mark consisting of a colored band applied to a
computer tape reel of contrasting color); T & T Mfg. Co. v. A.T. Cross Co., 178 USPQ
497, 502 (TTAB 1973) (“This narrows down as to whether the use of an identical
conical shape in three different colors represents three different marks or but a single
mark in different displays. It is our opinion that applicant possesses but a single mark
which covers the application of color to an arbitrary selected conical shaped portion
of the top of its writing instruments as against a barrel of a contrasting color; …
Serial No. 86644303

- 18 -
applicant possesses rights therein covering all of the different colors in which the
conical shaped portion may appear.”).
Both marks include overlaid maps of Africa and the United States. Inasmuch as
Registrant’s mark is not restricted to the use of black and white colors, it can appear
in the red, black and green colors shown in Applicant’s mark creating a similar
commercial impression to Applicant’s mark. Grandpa Pidgeon’s of Mo., 177 USPQ at
574 (the figures create a similar commercial impression, likely to be remembered by
purchasers of an aged man in overalls with cane and pipe, i.e., a “grandpa” … that
one figure is upright and apparently spry while the other is slightly stooped is, a
difference not likely to be recalled by purchasers seeing the marks at spaced intervals;
legal surgery, in which trademarks have parts enhanced or discarded, is of little aid
in determining the effect of design marks on purchasers who merely recollect); Am.
Sunbathing Assoc., Inc. v. Am. Health Alliance, 157 USPQ 586, 589-90 (TTAB 1968)
(nothing in the record shows that the sunburst emblem or any of the other features
comprising the marks of the applicant and registrant has been used by others in
connection with clothing; thus, registrant’s mark … precludes the registration by a
subsequent user of the same or a similar mark for similar goods; the overall
commercial impression created by applicant’s mark is sufficiently similar to
registrant’s mark as to be likely to cause confusion).
III. Conclusion
We have considered all of the evidence and arguments of record as it pertains to
the relevant du Pont factors (including any evidence and arguments not specifically
Serial No. 86644303

- 19 -
discussed). To the extent that any other du Pont factors for which no evidence or
argument were presented may nonetheless be applicable, we treat them as neutral.
While there are specific differences in the marks at issue, such differences are not
determinative of the issue of likelihood of confusion. The marks create the same
overall commercial impression such that a prospective consumer of Applicant’s goods
bearing his applied-for mark would be likely to associate such mark with Registrant’s
mark and would be likely to consider that Registrant was the source of goods so
marked. Furthermore, it is well established that, when the goods at issue are
identical, “the degree of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
In light of these considerations, while the marks involved are not identical, any
minor differences between them are insufficient to outweigh the remaining factors
that favor refusal of the registration in this case. Viterra, 101 USPQ2d at 1912.

Decision: The refusal to register Applicant’s mark is affirmed.